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The
Justice and Security Act (JSA) was passed into UK law in April and July 2013. Its
main purpose was to provide ‘closed material procedures’ (CMP) in relation to
certain civil proceedings.

The act
originated in a consultative or green paper introduced by the then justice
secretary, Kenneth Clarke, in 2011. This was an over-the-top affair, proposing
to make secret procedures available in all types of civil proceedings—not just
those cases involving national security and even when the government itself was
involved. It further proposed that the government should have the power to
decide for itself whether to invoke the secret procedure, with only very
limited review by the court.

According
to the barrister Tom Hickman, the consequent bill was ‘strikingly lop-sided’ in
failing to establish a reasonable balance between the public interest and
security concerns.[1]
The bill ‘enabled the Government to apply for CMP when it suited the Government
to do so’, he wrote. The courts ‘would have had no power to refuse a Government
request for CMP in any case involving national security sensitive material’ and
‘neither the courts nor other parties in the case would have had the power to
invoke CMP in cases in which it would have been contrary to the Government’s
interests for the court to look at the material’.

Hickman
argued that this position was, ‘so extravagant and indefensible ... that the Government
must have expected to give way on most if not all of these issues and may have
included such provisions ... to draw fire from other issues of more concern’. And
while the House of Lords duly removed these provisions, during the passage of
the bill through Parliament, the intentions of the government were pretty
clear. A dangerously reactionary and repressive piece of legislation was to be
introduced, ironically, under cover of improving oversight of the security and intelligence
services.

Secret
justice

Hitherto, the
courts could grant an order, a Public Interest Immunity (PII) certificate,
allowing one litigant in a case to refrain from disclosing evidence to the
others where this would be deemed damaging to the public interest—an exception
to the normal rule that all parties are obliged to disclose any relevant evidence.
In making a decision about issuing such an order, the court must balance the public
interest and the open administration of justice with concerns regarding
security which might be compromised by the disclosure of sensitive materials. This
principle, the ‘Wiley balance’, guards against the possibility that security concerns
will always override the need for disclosure. CMP works like PII but, crucially,
without the safeguard of the Wiley balance. In refusing to treat CMP as a last
resort, if a fair determination could not be arrived at by other means such as
PII, the government was clearly very keen to prioritise the former over the
latter.

CMP is
already in use in Special Immigration Appeals Commission (SIAC) proceedings,
under the Terrorism Prevention and Investigation Measures (TPIM) Act 2011. In
these contexts, although the court has to agree with the government that some
harm would be done to the public interest on the disclosure of evidence, it can
apply no balance-of-interest test to rule in favour of disclosure. Without the
Wiley balance, Hickman argues,

whole swathes of
information are not disclosable in these contexts even where the impact on
national security would be relatively slight or remote but the interests of justice in disclosure are overwhelming. The
result is that the majority of the evidence in a case, and often if not usually
the entirety of the Government’s factual case, remains undisclosed … in TPIM
cases.

It is this
system that is now to be applied under the JSA. The court will have the
discretion to declare whether CMP can be used in proceedings and initially it
can decide whether CMP would further the ‘fair and effective’ administration of
justice. But having done so the court loses its power to order disclosure of
sensitive material even where the interests of natural justice or openness
would so commend.

The Law
Society of England and Wales, representing solicitors, argued that the JSA infringed
open justice and jeopardised the right to a fair trial based on equality of
arms as an essential element of the rule of law. In the same vein, the
barrister Michael Fordham commented: ‘Secret trials undermine the principles of
open justice and natural justice on which the rule of law is built.’ The spread
of secrecy allows ‘the state authorities to become self-immunised from proper
public scrutiny’, he contended, even warning that judges might refuse to
preside over such secret courts. Liberal Democrat MPs from the ruling
Conservative-Liberal coalition supported the bill through Parliament, despite
overwhelming contrary votes at two party conferences. A former Westminster
candidate, Jo Shaw, the human-rights lawyers Dinah Rose and Phillipe Sands and the
copyright reformer Cory Doctorow all resigned from the party in protest. The
Lib Dems are reportedly having second thoughts.

The problem
has been best summed up by Martin Chamberlain, a barrister who has worked as a ‘special
advocate’ (see below) in secret courts since 2003. Chamberlain described the
system as worthy of Franz Kafka, likening the use of CMPs to Joseph K’s ordeal
in The Trial: ‘As a special advocate,
you are able to see and hear both the “open” and “closed” evidence. But often,
the Government witness will refuse to answer particular questions in open
court, and the issue will have to be pursued by the special advocate in closed
hearing. But, after seeing the closed material, I am prohibited from speaking
to my client. So I will never know if he had an alibi or innocent explanation
and nor will the court.’

‘State of
emergency’

The JSA is
part of a package of increasingly repressive and anti-democratic legislation
going back to the Anti-terrorism, Crime and Security Act 2001. Introducing
detention without trial for ‘terrorist’ suspects, this required the government
to derogate from article 5 of the European Convention on Human Rights on the
grounds that there was a ‘state of emergency threatening the life of the nation’—one
interpretation of the ‘war on terror’. Secret court procedures were introduced
to deal with appeals by detainees held under the act. Fearing disclosure of
material in such appeals which might compromise the activities of the
intelligence services, the government permitted the exclusion of the detainees
and their legal representatives from the proceedings and their replacement by
security-vetted ‘special advocates’. The
SIAC was set up to oversee this process.

In 2004
the Law Lords ruled against these powers of detention and the act was
eventually replaced by The Prevention of Terrorism Act 2005. The ten detainees
then held in Belmarsh prison were released but immediately subjected to ‘control
orders’—a technological prison without bars—under the new act. This provision continued
in modified form under the Terrorism Prevention and Investigation Measures Act
2011.

As Mark
Neocleous has persuasively shown,[2] states of emergency are
by no means new in the UK: something close to the martial law declared during
the first world war was repeatedly re-introduced in every decade subsequently.
These exceptional powers became the norm and were routinely used against, for
example, the organised working class. Emergency powers tend to become permanent
in spite of politicians’ assurances to the contrary. They also have a tendency
to spread—Neocleous noting that ‘emergency legislation in Northern Ireland (for
example) has almost always become general legislation applicable to the whole
of the UK’.

Such
legislation is now routinely misused to target and intimidate journalists and
others whose activities can be represented as equating to ‘terrorism’. The
recent detention at Heathrow airport of David Miranda, partner of the
investigative journalist Glenn Greenwald, under schedule 7 of the Terrorism Act
2001 was a far from isolated incident.

Andreas
Speck has twice been detained by anti-terrorism police, presumably under schedule
7. In early 2008, Speck was detained at St Pancras returning from a holiday in
Germany. He was questioned about military bases, Nato and other related issues:
‘I was then working at War Resisters International and involved in the
preparation of an anti-Nato action in Brussels (organised publicly, with
nonviolence guidelines).’ The second time was in 2011, returning from an
anti-Nato meeting in Brussels. He was detained together with a fellow
campaigner by Welsh anti-terrorist police at Holyhead.

In
September 2013 a Yemeni anti-drone activist and local project co-ordinator for the
legal charity Reprieve, Baraa Shiban, was detained at Gatwick airport, again
under schedule 7, and questioned about his anti-drone work and his political
attitudes. Cory Crider of Reprieve commented that ‘if there were any doubt that
the UK was abusing its counter-terrorism powers to silence critics, this ends
it’.

Drone
opponents are seen as ‘threats’ and ‘adversaries’, according to Greenwald. From
the other side of the Atlantic, he has written: ‘Due process for the US—the
idea that people should not be deprived of life away from the battlefield
without presenting evidence of guilt—is no longer a staple of the US political
system but rather a malicious weapon of “propaganda”.’

The ghost
of Carl Schmitt

This
emphasis on sovereign power and states of emergency raises fears about the fate
of liberal democracy. Recent revelations about mass surveillance by the US
National Security Agency and GCHQ in the UK serve only to confirm this shift. Calls
for greater executive power, unhampered by the constraints of legality, to
counter the threat of ‘terrorism’ recall the German legal scholar Carl Schmitt.

Some
regard Schmitt as one of the greatest legal minds of the last century. But he
was also a fascist and rabid anti-Semite who joined the Nazi party in 1933 and
became a prominent figure in the regime’s legal circles, until his fall from
grace in 1936. Schmitt believed liberal democracy was ineffectual and
ultimately unworkable, because liberal constitutions either prevaricated about
or avoided altogether the concept of sovereignty, which he considered
indispensable to legal order.

For
Schmitt the legal norms legitimising acts of state in liberal constitutions are
problematic for two reasons. First, they fail to provide sufficient guidance on
matters of any kind without considerable deliberation, consultation and
interpretation. In other words, the political process is too protracted and the
outcomes too uncertain to work efficiently. What is needed for the law to be
effective is a guiding authority (a sovereign power) to cut through all
this—effectively by deciding, which is to say ruling, on the issue. Secondly,
legal norms are incapable of dealing adequately with every eventuality and
specifically an extreme emergency. Normal laws can’t cope in abnormal
circumstances; they are likely to be overwhelmed and the crisis is unlikely to
be averted. The law has to be suspended, precipitating a state of exception.
Hence Schmitt’s maxim: ‘He is sovereign who decides on the state of exception.’

Driven by
an overriding desire for certainty and stability, brought on by a pathological
fear of their opposites, Schmitt betrayed the weakness at the heart of fascist
posturing. Fear of change and of difference were condensed into the integrating
principle of his political philosophy—fear of the enemy: ‘The specific
political distinction ... is that between friend and enemy.’ A political group
was defined against the enemy because
this embodied what Schmitt called the utmost association and dissociation—the
willingness to fight and die together as well as a willingness to kill others as
members of a hostile group.

Embodied
in the idea of the enemy, fear of instability leads to an overriding emphasis
on internal and external security at the cost of privacy—even of the liberty
that might be deemed to inhibit it. Fear of difference leads to an obsessive
concern for social homogeneity, based on the notion of some mythical ‘blood and
soil’ unity prior to any legal constitution.

Recently
in Brussels, EU leaders raised concerns about US phone-tapping, suggesting that
mass surveillance might imperil counter-terrorism efforts by undermining trust
between the US and Europe. Yet in a post-summit press conference the UK prime minister,
David Cameron, struck a rather different note—blaming the whistleblower Edward
Snowden and ‘the newspapers helping him’ for ‘making it more difficult to keep
our countries and our citizens safe’. He said that ‘it was a leader’s priority
to try to keep their country safe and that meant not having some lah-di-dah,
airy-fairy view about what all this means’.

This
grotesquely one-sided view is entirely Schmittian in its emphasis and in line
with the direction of travel represented by the secret courts of the JSA, because
it utterly lacks any countervailing concern for liberty. But, as Neocleous
asks, is even the conventional idea that a ‘balance’ between liberty and
security should be struck an unexamined good? We need to ask hard questions
about the meanings with which these terms and their relationship are invested
and deployed.

[1] Tom Hickman, `Turning Out the Lights? The Justice and Security Act 2013’, UK Constitutional Law blog, June 11th 2013 (available at http://ukconstitutionallaw.org)

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